MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 09 2017, 8:01 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Anthony M. Rose Mark F. James Anthony Rose Law Firm Anderson, Agostino & Keller P.C. South Bend, Indiana South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 9, 2017 K.D., Court of Appeals Case No. 71A03-1605-AD-1053 B.D., Appeal from the Appellant-Respondent, St. Joseph Probate Court v. The Honorable James N. Fox, Judge W.D. and D.D., Trial Court Cause No. 71J01-1410-AD-93 Appellees-Petitioners.
Kirsch, Judge.
[1] B.D. (“Father”) appeals the trial court’s order granting the petition for adoption
of K.D. filed by W.D. and D.D. (together, “the Grandparents”). Father raises
the following restated issue for our review: whether the trial court erred when it
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 1 of 7 concluded that Father’s consent to the adoption was not required because he
knowingly failed to provide for the care and support of K.D. when he was able
to do so.
[2] We affirm.
Facts and Procedural History [3] Father and H.D. (“Mother”) were married and had one child together, K.D.,
who was born on October 23, 2005. On August 4, 2005, Father was
incarcerated for a sexual misconduct with a minor conviction and was released
on parole on October 24, 2011. Father was again incarcerated on January 31,
2012 for a parole violation, and his anticipated release date is in September
2018. Sometime after Father became incarcerated, the marriage between
Mother and Father was dissolved; as a result of the dissolution, a child support
order was entered in Cause Number 20D01-0901-DR-9.
[4] W.D. and D.D. are the maternal grandparents of K.D. On November 5, 2014,
the Grandparents filed a petition for adoption, seeking to adopt K.D. Mother
consented to the adoption, and her consent was attached to the petition. The
Grandparents asserted that Father’s consent was not required because Father
had failed to provide support for K.D. for over one year when he had the ability
to do so. Appellant’s App. at 12.
[5] Between September 2013 and August 2015, while incarcerated, Father earned
approximately $53.00 per month through inmate employment at the prison
facility in which he was housed. At the time of the evidentiary hearing, Father Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 2 of 7 had $53.97 in his inmate trust account, which is also called a JPAY account. A
review of the JPAY account showed that Father had used funds from the
account for purchases from Papa John’s Pizza and Kentucky Fried Chicken as
part of prison fundraisers. Pet’r’s Ex. 1.
[6] During Father’s first period of incarceration, he made payments toward the
child support order for K.D. through an Income Withholding Order. After
Father returned to prison in 2012, Father’s JPAY account was debited for child
support payments through an Income Withholding Order. Father would
occasionally review his JPAY account and observed that these payments were
being routinely taken out of the account. In addition to his obligation for K.D.,
Father had a second child support obligation for another child that lived in
another state. The JPAY transaction history indicated that money was being
withheld for child support payments, but did not identify to which child support
case the money was being applied. Father testified that he thought the child
support payments being taken from his JPAY account were being given to both
of his children. Tr. at 63. In October 2015, Father became aware that the child
support deductions from his JPAY account were being applied to his other
child and not to K.D. Around the time the petition for adoption was filed,
Father began to mail child support payments to the Indiana Child Support
Collection Unit to be applied to his child support obligation for K.D.
[7] An evidentiary hearing was held on the Grandparents’ adoption petition on
January 25, 2016. After taking the case under advisement, the trial court
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 3 of 7 granted the Grandparents’ petition for adoption, finding that Father had the
ability to provide support for K.D. and failed to do so. Father now appeals.
Discussion and Decision [8] When reviewing a trial court’s ruling in an adoption case, the appellant bears
the burden of overcoming the presumption that the trial court’s decision is
correct. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing
In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied).
We will neither reweigh the evidence nor judge the credibility of witnesses;
instead, we will consider the evidence most favorable to the trial court’s
decision, and the reasonable inferences to be drawn therefrom, to determine
whether sufficient evidence exists to sustain the decision. Id. We will not
disturb the trial court’s ruling unless the evidence leads to only one conclusion
and the probate court reached an opposite conclusion. Id.
[9] Father argues that the trial court erred in determining that his consent to the
adoption was not required and in granting the Grandparents’ petition for the
adoption of K.D. He contends that the evidence presented was not sufficient to
support the conclusion that he knowingly failed to provide for the support of
K.D. Father claims that he believed that child support withholdings from his
JPAY account were being applied to his child support obligation for K.D. He
further asserts that the transaction history for his JPAY account did not contain
enough information to determine the specific case, K.D.’s or his other child’s,
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 4 of 7 to which the withholdings were applied and that he believed that payments
were being paid to both children.
[10] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. However, consent to adoption is not required from:
A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
Ind. Code § 31-19-9-8(a)(2). “If a parent has made only token efforts to support
or to communicate with the child the court may declare the child abandoned by
the parent.” Ind. Code § 31-19-9-8(b). The petitioner bears the burden to prove
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 09 2017, 8:01 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Anthony M. Rose Mark F. James Anthony Rose Law Firm Anderson, Agostino & Keller P.C. South Bend, Indiana South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 9, 2017 K.D., Court of Appeals Case No. 71A03-1605-AD-1053 B.D., Appeal from the Appellant-Respondent, St. Joseph Probate Court v. The Honorable James N. Fox, Judge W.D. and D.D., Trial Court Cause No. 71J01-1410-AD-93 Appellees-Petitioners.
Kirsch, Judge.
[1] B.D. (“Father”) appeals the trial court’s order granting the petition for adoption
of K.D. filed by W.D. and D.D. (together, “the Grandparents”). Father raises
the following restated issue for our review: whether the trial court erred when it
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 1 of 7 concluded that Father’s consent to the adoption was not required because he
knowingly failed to provide for the care and support of K.D. when he was able
to do so.
[2] We affirm.
Facts and Procedural History [3] Father and H.D. (“Mother”) were married and had one child together, K.D.,
who was born on October 23, 2005. On August 4, 2005, Father was
incarcerated for a sexual misconduct with a minor conviction and was released
on parole on October 24, 2011. Father was again incarcerated on January 31,
2012 for a parole violation, and his anticipated release date is in September
2018. Sometime after Father became incarcerated, the marriage between
Mother and Father was dissolved; as a result of the dissolution, a child support
order was entered in Cause Number 20D01-0901-DR-9.
[4] W.D. and D.D. are the maternal grandparents of K.D. On November 5, 2014,
the Grandparents filed a petition for adoption, seeking to adopt K.D. Mother
consented to the adoption, and her consent was attached to the petition. The
Grandparents asserted that Father’s consent was not required because Father
had failed to provide support for K.D. for over one year when he had the ability
to do so. Appellant’s App. at 12.
[5] Between September 2013 and August 2015, while incarcerated, Father earned
approximately $53.00 per month through inmate employment at the prison
facility in which he was housed. At the time of the evidentiary hearing, Father Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 2 of 7 had $53.97 in his inmate trust account, which is also called a JPAY account. A
review of the JPAY account showed that Father had used funds from the
account for purchases from Papa John’s Pizza and Kentucky Fried Chicken as
part of prison fundraisers. Pet’r’s Ex. 1.
[6] During Father’s first period of incarceration, he made payments toward the
child support order for K.D. through an Income Withholding Order. After
Father returned to prison in 2012, Father’s JPAY account was debited for child
support payments through an Income Withholding Order. Father would
occasionally review his JPAY account and observed that these payments were
being routinely taken out of the account. In addition to his obligation for K.D.,
Father had a second child support obligation for another child that lived in
another state. The JPAY transaction history indicated that money was being
withheld for child support payments, but did not identify to which child support
case the money was being applied. Father testified that he thought the child
support payments being taken from his JPAY account were being given to both
of his children. Tr. at 63. In October 2015, Father became aware that the child
support deductions from his JPAY account were being applied to his other
child and not to K.D. Around the time the petition for adoption was filed,
Father began to mail child support payments to the Indiana Child Support
Collection Unit to be applied to his child support obligation for K.D.
[7] An evidentiary hearing was held on the Grandparents’ adoption petition on
January 25, 2016. After taking the case under advisement, the trial court
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 3 of 7 granted the Grandparents’ petition for adoption, finding that Father had the
ability to provide support for K.D. and failed to do so. Father now appeals.
Discussion and Decision [8] When reviewing a trial court’s ruling in an adoption case, the appellant bears
the burden of overcoming the presumption that the trial court’s decision is
correct. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing
In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied).
We will neither reweigh the evidence nor judge the credibility of witnesses;
instead, we will consider the evidence most favorable to the trial court’s
decision, and the reasonable inferences to be drawn therefrom, to determine
whether sufficient evidence exists to sustain the decision. Id. We will not
disturb the trial court’s ruling unless the evidence leads to only one conclusion
and the probate court reached an opposite conclusion. Id.
[9] Father argues that the trial court erred in determining that his consent to the
adoption was not required and in granting the Grandparents’ petition for the
adoption of K.D. He contends that the evidence presented was not sufficient to
support the conclusion that he knowingly failed to provide for the support of
K.D. Father claims that he believed that child support withholdings from his
JPAY account were being applied to his child support obligation for K.D. He
further asserts that the transaction history for his JPAY account did not contain
enough information to determine the specific case, K.D.’s or his other child’s,
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 4 of 7 to which the withholdings were applied and that he believed that payments
were being paid to both children.
[10] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. However, consent to adoption is not required from:
A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
Ind. Code § 31-19-9-8(a)(2). “If a parent has made only token efforts to support
or to communicate with the child the court may declare the child abandoned by
the parent.” Ind. Code § 31-19-9-8(b). The petitioner bears the burden to prove
this by clear and convincing evidence. In re Adoption of M.S., 10 N.E.3d 1272,
1279 (Ind. Ct. App. 2014).
[11] We do not address Father’s argument regarding whether he knowingly failed to
provide for the support of K.D. when able to do so because we affirm the trial
court’s judgment based on Father’s failure to communicate significantly with
K.D. when able to do so. At the hearing on the Grandparents’ petition, Father
testified that he was in prison at the time that K.D. was born and had never had
any direct contact with her. Tr. at 43-44. K.D. was ten years old at the time of
the hearing. Father additionally testified that he “periodically” sent letters and
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 5 of 7 cards to K.D., and there was no testimony when the most recent
correspondence had been sent. Id. at 46. There was also testimony that Father
never sent gifts or clothing to K.D. Id. at 16, 23-24.
[12] Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive—consent of
the parent is not required where either failure to communicate significantly or
failure to provide support is established. In re Adoption of S.W., 979 N.E.2d at
640. Furthermore, we may affirm a trial court order on any basis supported by
the record. Wishard Mem’l Hosp. v. Kerr, 846 N.E.2d 1083, 1093 (Ind. Ct. App.
2006). Here, because there was no evidence presented at the hearing that
Father has sent K.D. any gifts or correspondence or otherwise communicated
significantly with her when he was able to do so, we conclude that the trial
court did not clearly err when it found that Father’s consent was not required
and granted the Grandparents’ petition to adopt K.D. See In re Adoption of T.W.,
859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006) (trial court did not clearly err by
concluding that incarcerated father failed, without justifiable cause, to
communicate significantly with his children, when the record did not
demonstrate that father actually tried to write to the children or telephone them,
and father’s argument that his attempts at communication would have been
thwarted was speculative); Williams v. Townsend, 629 N.E.2d 252, 254 (Ind. Ct.
App. 1994) (occasional letter or card sent to child from incarcerated parent and
one telephone conversation with child was “token communication” that was
properly disregarded by trial court when determining that parent’s consent to
adoption was not required).
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 6 of 7 [13] Affirmed.
[14] Robb, J., concurs.
[15] Barnes, J., concurs in result without separate opinion.
Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 7 of 7